Activists citing the right to free speech want the Idaho law struck down, and a federal judge may rule on the case next month. The challenge is part of the pushback against rules in at least seven states, known to their opponents as “ag-gag laws,” that prohibit documenting conditions on animal farms. At the same time, lawmakers proposed new bills limiting documentation of farm conditions in five more states this year.

Organizations such as Mercy for Animals, which posted the Idaho video of what they identified as a farm that supplies Burger King Corp., said undercover investigations are the only way to expose abuses, in the tradition of Upton Sinclair’s 1906 novel, “The Jungle.” The industry has a different view. According to the Animal Agriculture Alliance, such videos misrepresent agricultural practices. They’re staged by interlopers who get farm jobs under false pretenses, then use an excuse to disappear weeks or months before the videos surface. Worse, they draw attention to vulnerabilities in the food supply that could be exploited by terrorists.

“You have the farmers, producers, industry who are trying to protect themselves,” said David Favre, a law professor at Michigan State University in East Lansing who studies animal issues. “On the other side you have First Amendment people and animal people who are saying, ‘No, we get to talk about the conditions of the animals, and it’s inappropriate for you to interfere with our collection process.’”

Shocked, Too

Luis Bettencourt, the owner of the farm shown in the video, said the footage shocked him, too. It shows workers hitting cows with sticks, dragging a cow behind a tractor and kicking cows in the face. Bettencourt told local television news that he fired the staff involved, installed cameras and tightened background checks. The workers were eventually punished by the courts with fines and probation for animal cruelty. Bettencourt didn’t answer phone messages seeking comment.

The animal-rights video was irresponsible to single out Burger King and it misrepresents the company’s commitment to animal welfare, the fast-food chain said in an e-mailed statement. The company said it doesn’t have a position on state laws prohibiting undercover videos.

Food Safety

The Idaho law was drafted by a lawyer for the state’s dairy association. It made it a crime to interfere with agricultural production by gaining employment under false pretenses and making audio or video recordings without permission. The law took effect immediately after Republican Governor C.L. “Butch” Otter signed it on Feb. 28, 2014.

“Terrorism has been used for centuries to destroy the ability to produce food and the confidence in food’s safety,” Jim Patrick, a Republican state senator who sponsored the bill, said of the legislation at the time. “This is how you combat your enemies.”

Twenty-four states, including California, Colorado and South Dakota, have rejected similar proposals after activists objected, according to the American Society for the Prevention of Cruelty to Animals. The American Farm Bureau Federation has supported bills, and Monsanto Co., the world’s biggest seed company, said it backed a successful 2012 effort in Iowa.

Sued Idaho

The Animal Legal Defense Fund and other organizations sued the state of Idaho in federal court in March 2014, claiming the law impinged on freedom of speech. The language was so broad, they argued, that it could criminalize making recordings in restaurants or home kitchens.

“Frankly, we see the expedient nature in which their suit was filed as a compliment to the security this new law grants Idaho agricultural producers,” the Idaho Dairymen’s Association said in a letter on its website. Bob Naerebout, the group’s director, said the law strikes a good balance between protecting free speech and private property.

The association asked to intervene in the lawsuit, but the judge, B. Lynn Winmill, appointed by President Bill Clinton, concluded that the state could adequately represent the industry’s interests. She may rule on the case at a hearing scheduled for next month.

First Charged

If the animal activists prevail, Matthew Liebman, one of the ALDF’s lead attorneys, said he expects the state to appeal. After that, they may ask for review from the U.S. Supreme Court, he said.

“No matter how descriptive my words are you’ll never fully understand what life is like for these animals until you see a video,” said Amy Meyer, a 27-year-old activist in Salt Lake City. In 2013, she became the first person in the country charged under an “ag-gag” law after videotaping a slaughterhouse from the side of the road. The charge was later dropped. She and the ALDF are pursuing another constitutional challenge in a Utah federal court.

There are many other places where videotaping is prohibited for good reasons, such as concerts, museums and movie theaters, said Kay Johnson Smith, president of the Animal Agriculture Alliance in Arlington, Virginia.

Unauthorized Videos

“The reason these laws have been proposed is the use of unauthorized videos and photographs by animal-rights activists and animal-extremist organizations that exist to stop the use of animals for food have found this is a very effective publicity tool and fundraising tool for them to advance their agenda,” Smith said.

The videos lack context because of how they’re edited, and activists have refused to release raw footage, she said. Some practices that veterinarians consider beneficial might appear cruel to people unfamiliar with the industry, she said. For example, animals are housed indoors to protect them from the elements and are restrained in order to receive vaccines.

“People don’t understand where their food is coming from and how animals are being raised,” she said.

In the Idaho case, a dairy worker complained to his supervisors and alerted authorities while he was still employed, before Mercy for Animals posted the video, according to Vandhana Bala, the group’s general counsel. The organization has turned over raw footage to authorities but hasn’t released it publicly because there would be too many hours of video, she said.

Dairy Case

“The fact that multiple individuals were charged and convicted clearly demonstrates the legitimacy of our evidence,” Bala said. Mercy for Animals won’t do undercover investigations in states where they’ve been outlawed, she said.

Consumers who want to know more about their food would be better served by visiting farms on organized tours or watching the videos on the Animal Agriculture Alliance’s website, according to Smith of the Animal Agriculture Alliance.

The safety of the meat industry is a matter of national security to make sure the U.S. isn’t dependent on imports and isn’t vulnerable to food-borne attacks, she said.

“The real al-Qaedas and ISISes of the world, they monitor what’s happening,” Smith said. “I don’t think the use of undercover videos is an act of terrorism, but it could easily be imitated by terrorists who see how easy it is to be hired onto a farm.”